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State v. Francis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 14, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JANET FRANCIS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. 18665.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 31, 2010

Before Judges Simonelli and Waugh.

Defendant Janet Francis appeals an order of the Law Division denying a portion of her petition for expungement. We affirm.

In January 2009, Francis applied for expungement of three matters, one of which involved her arrest on April 11, 2004, in Willingboro. At that time, she was charged with violating N.J.S.A. 2C:29-3(a)(7) (giving false information to a law enforcement officer). The charge was subsequently downgraded to a local ordinance violation. Francis was fined for that violation on August 26, 2004, and paid the fine the same day.

The petition was heard on June 3, 2009. Although Francis was granted expungement with respect to two of the three matters, Judge Darlene J. Pereksta denied expungement of the April 11, 2004, arrest and related municipal ordinance adjudication. Citing N.J.S.A. 2C:52-4, she determined that Francis was not eligible for expungement of that arrest because she had three prior disorderly persons convictions. Francis's motion for reconsideration was denied. This appeal followed. N.J.S.A. 2C:52-4 provides as follows:

In all cases wherein a person has been found guilty of violating a municipal ordinance of any governmental entity of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and who has not been adjudged a disorderly person or petty disorderly person on more than two occasions, may, after the expiration of a period of 2 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 herein to the Superior Court in the county in which the violation occurred praying that such conviction and all records and information pertaining thereto be expunged.

Consequently, an expungement petitioner seeking to expunge a municipal ordinance conviction is not eligible for expungement if there was either a criminal conviction or two disorderly/petty disorderly persons convictions.

Although Francis had no conviction for a crime, as defined by N.J.S.A. 2C:1-4, the record on appeal reflects (1) an arrest on January 24, 1990, in Hamilton Township, that resulted in a guilty plea to a disorderly persons shoplifting offense; (2) an arrest on January 18, 1991, in Ewing Township, that also resulted in a guilty plea to a disorderly persons shoplifting offense; and (3) an arrest on January 30, 1992, in Lawrence Township, that was downgraded and resulted in a disorderly persons conviction for theft of movable property. The first two offenses had been expunged on September 28, 1998, and the third was expunged as part of the application that gave rise to this appeal.*fn1

Francis appears to argue on appeal that the expunged disorderly persons offenses were not appropriately considered in connection with her request to expunge the April 11, 2004, arrest and related municipal ordinance adjudication. We disagree. N.J.S.A. 2C:52-17 specifically provides:

Expunged records may be used by the agencies that possess same to ascertain whether a person has had prior conviction expunged, or sealed under prior law, when the agency possessing the record is noticed of a pending petition for the expungement of a conviction. Any such agency may supply information to the court wherein the motion is pending and to the other parties who are entitled to notice pursuant to 2C:52-10.

In addition, N.J.S.A. 2C:52-4 does not exempt previously expunged matters from consideration in determining eligibility for expungement of municipal ordinance offenses.*fn2

Consequently, we affirm the orders on appeal.


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